Njoroge v Mwema & another (Environment and Land Appeal E011 of 2024) [2026] KEELC 3342 (KLR)

regarding costs and condemning a wholly successful appellant to bear the costs of both the appeal and the lower court proceedings. Secondly, unless the stay of execution of the impugned costs order is granted, the respondent is likely to commence execution proceedings thereby occasioning substantial loss, irreparable harm and undermining the substratum of the pending appeal contrary to order 42 rule 6(2) of the Civil Procedure Rules. Thirdly, no prejudice will be occasioned to the respondent if the orders sought are granted; rather they will safeguard the appellant’s constitutional rights, uphold the principles of fairness under article 159(2) (a) and (e) of the Constitution, and ensure that justice is seen to be done. Fourthly, the court has wide and unfettered discretion under sections 1A, 1B and 3A of the Civil Procedure Act to issue such orders as may be necessary for the ends of justice or to prevent abuse of the court process. Finally, the appeal has overwhelming chances of success and it is in the interest of justice that the appeal be preserved by way of injunctive relief. 3. The motion, though served, is unopposed since the respondents did not file any replying afidavit or grounds of opposition. 4. Counsel for the appellant filed written submissions dated 30-4-2026. The issues identified are as follows. a. Whether the motion meets the threshold for stay of execution pending appeal. b. Whether the Appellant stands to sufier irreparable loss if the orders sought are not granted. c. In whose favour does the balance of convenience tilt? 5. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit and the submissions by the learned counsel for the appellant. I find as follows on the issues identified by the learned counsel for the appellant. 6. Regarding the first issue, I find that the appellant has not demonstrated that he stands to sufier substantial loss. He lost in the lower court. He also lost in appeal. The only reason why he was allowed to have the case reheard was that he hired an unqualified person to represent and alleged that he was in occupation of the suit land or part of it. The appellant cannot therefore be heard to say that he cannot pay the costs adjudged against him. In addition to the payment of costs, there were other directions that the court issued as to the expeditious disposal of the lower court suit. There is no evidence that those directions were complied with. 7. Looking at the second issue, there is no proof that the appellant will sufier irreparable loss if he pays the costs awarded to the respondents. He will be like a defendant paying thrown away costs where such a defendant has been given a chance to defend a suit which had proceeded exparte. Payment of costs will prove that the appellant has a good case and in the end, he will recover the said costs if he eventually succeeds in his claim. The appellant is not saying that the respondents will not be in a position to refund the costs in the event that the appellant eventually succeeds. The respondents will afiord the costs because they have the suit land which I believe is worth more than the costs. 8. Finally, on the issue of in whose appear the balance of convenient tilts, I find the balance of convenience applies in cases of injunctions as per the case of Giella v Cassman Brown [1973] EA, 358. The applicable principles in this case are those in order 42 rule 6(2) of the Civil Procedure Rules of substantial loss, the motion being filed without in ordinate delay and the applicant providing security for the due performance of any order or decree that may be binding upon him. All these three conditions must be satisfied before the order for stay of execution is allowed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3342/eng@2026-06-02 2

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In this case, the appellant having lost twice is seeking to avoid paying costs while he continues to litigate on an issue that he should have litigated from the very beginning. Surely, he must not fear paying the costs. For the above stated reasons, I find no merit in the motion dated 14-8-2025 which I dismiss with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF JUNE, 2026. M. N. GICHERU JUDGE Delivered online in the presence of; Court Assistant – Antony. Appellant’s Counsel – Miss Mwema holding brief. Respondents’ Counsel – Absent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3342/eng@2026-06-02 3

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